[2025] UKUT 190 (LC)

Permission to appeal was granted to Mr and Mrs French by this Tribunal on the ground that it was arguable that the FTT “could not properly have concluded on the evidence before it that the drive was twenty feet wide between points B and E.”

It is agreed by Mr and Mrs Hannah that that is correct; instead of being 20 feet wide all the way, the drive tapered from B to E as shown on the DB plan. Accordingly in any event the judge’s decision has to be set aside, and both parties are anxious for the Tribunal to substitute its own decision rather than remitting the matter to the FTT. But Mr and Mrs French go further; they argue that the edge of the drive, and the boundary between the two properties ran along the edge of the metalled area drive from A to E, so that Area A has always belonged to Heatherwood South. They say that that follows from the fact that the judge found that the drive had not been widened.

In paragraph 2 of his skeleton argument Mr Morris said that “The central problem is that the FTT found as a fact that that access road has not been widened beyond its original width of ten feet. It is on that basis that Upper Tribunal Judge Cooke gave permission to appeal.” As can be seen from paragraph [54] above that was not the basis on which permission to appeal was given. And as can be seen from the extracts from the FTT’s judgment above, the judge did not find that the drive had not been widened. On the contrary at paragraph 26 he expressly rejected the proposition that it had not been widened.

Mr Morris’ argument focused on paragraph 27 of the decision. He argued that the judge was in error about the legal test; the “reasonable layman” (Chadwick v Abbotswood Properties Ltd, see paragraph [23] above) does not have the planning permission in his hand. That may or may not be right; but if he did have the planning permission in his hand he would know that the drive was required to be widened, but not all the way to point E – which I think was the judge’s error here. However, the judge found as a fact at paragraph 26 that the drive was widened, and he referred in paragraph 27 to Area A as part of the drive; so the reasonable layman – whether or not he had the plan in his hand – would have seen that Area A had been incorporated into the drive and would have inferred that he now owned the land up to the eastern edge of Area A.

What is not known is whether the rest of the drive, other than Area A, was metalled at that time. The judge at paragraph 27 said that “the drive was not excavated”. Perhaps what is now metalled was metalled by 20 May 1959, in which case it could make sense to say that “the drive” (meaning the drive as a whole) was not excavated because the main part of it was metalled but Area A was not metalled. But there was no evidence before the judge to enable him to conclude that and I do not think that is what he meant. He may have meant that Area A and the rest of the drive shared a common unmetalled surface in 1959, which was not excavated, on the basis that Area A was unlikely to have been treated differently from the rest of the drive despite the marked difference between the two today (to which he referred in paragraph 27).

One further possibility is that when the judge wrote “I find that the driveway was not excavated in 1959” he meant to say “I find that Area A was not excavated in 1959”.

That would be an unfortunate error since the issue between the parties was whether or not Area A formed part of the drive in 1959. But it is possible. After all, the granite setts were put in so some digging was done; it is perfectly possible that the rest of the “reconstruction” was carried out as specified in the planning permission but not for the full 20 foot width, leaving Area A as an unsurfaced passing place. If that is what happened it does not change my conclusion. At this point in his decision the judge had already found that the drive had been widened, and that it had been widened in order to facilitate access to and from Sandy Lane. So the widening must have taken place at the mouth of the drive. The distance from point B to the western edge of the drive is about twenty feet. So the widening, that the judge found had been done. was at or near the junction with the road, and that widening was Area A. And that is consistent with what the judge said at his paragraph 31, where he considered whether the owners of Heatherwood South had been in adverse possession of Area A, because the judge did not regard Area A as having been conveyed on 20 May 1959 as part of Heatherwood South.

Accordingly my conclusion on Mr and Mrs French’s appeal is that I agree that the judge fell into error in his paragraph 28; the “reasonable layman” with the plan in his hand on 20 May 1959, whether or not he had the planning permission in the other hand, would not have concluded that a 20 foot strip from B to E remained in the ownership of Heatherwood West. But we know from the judge’s finding at paragraph 26 that the drive was widened. Area A had therefore been incorporated into the drive at that date and that would have been visible to the purchaser. With or without the planning permission in his hand, the reasonable layman would have found that the drive, which he did not own, included Area A.

A different argument made for Mr and Mrs French relied upon the various conveyancing plans, none of which depicts a bulge for Area A. The judge’s finding that the drive was widened was made despite the absence of a bulge on any of the conveyance plans in 1959 or later and a corresponding absence on the Land Registry plans. However, none of the plans is on a particularly large scale and none purports to be precise; all the conveyance plans were for the purposes of identification only, and the Land Registry plans show general boundaries only. The judge found that the drive was widened as a result of the planning permission; and yet the depiction of the drive remains the same as it was in the February conveyance before it was widened. Therefore I take the view that the lack of a bulge on the conveyance plans does not indicate that Area A never became part of the drive. It did, but the conveyancers (none of whom need have seen the land) did not depict that on their plans.

I conclude that Mr and Mrs French’s appeal fails.